McPartlin v. County Of Cook et al
MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang on 2/10/2018: For the reasons discussed, Defendants' motion 13 to dismiss is granted on the federal law claims (Counts One through Three) and, if the dismissal becomes final, then supplemental jurisdiction will be relinquished as to the state law claims (Counts Four through Six). If McPartlin thinks he can fix the deficiencies in the First Amendment claims, then he may file an amended complaint by 03/01/2018. As discusse d in the Opinion, in light of the legal and factual hurdles, the Court is skeptical that McPartlin will be able to cure the problems in an amended complaint, but he is entitled to try. The status hearing of 02/26/2018 is reset to 03/06/2018, at 1:15 p.m. Emailed notice. (Chang, Edmond)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
COUNTY OF COOK, TONI
PRECKWINKLE, individually and in her
official capacity, and PETER N. SILVESTRI, )
individually and in his official capacity ,
Case No. 17 C 00343
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiff Frank McPartlin alleges that he was fired from his job as a Special
Assistant in the Cook County Bureau of Administration in retaliation for political
activity protected by the First Amendment. He filed a suit under 42 U.S.C. § 1983
and Illinois common law against three defendants: Cook County; Toni Preckwinkle,
the President of the Cook County Board of Commissioners; and Peter Silvestri, a
Commissioner on the Board.1 (For convenience’s sake, the Defendants collectively
will be referred to as the County unless context dictates otherwise.) The County
now moves to dismiss the complaint for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6). R. 13, Defs.’ Mot. Dismiss.2 The defense argues that
McPartlin could be fired for political reasons because he was employed in a
Court has federal-question jurisdiction over McPartlin’s federal claims under
28 U.S.C. § 1331 and supplemental jurisdiction over his state law claims under 28 U.S.C.
2Citation to the docket is “R.” followed by the entry number and, when necessary,
the relevant page or paragraph number.
“Shakman-exempt” position. R. 14, Defs.’ Br. at 5. In the alternative, they argue
that Preckwinkle and Silvestri are entitled to qualified immunity. Id. at 8. The
County also contends that McPartlin’s state law claims are time-barred under the
Illinois Governmental Tort Immunity Act. Id. at 11. For the reasons discussed
below, the County’s motion is granted as to McPartlin’s First Amendment claims,
and the Court relinquishes supplemental jurisdiction over his state law claims if
and when the dismissal of the federal claims becomes final.
For the purpose of this motion, the Court accepts as true all well-pleaded
facts in the complaint. McPartlin has held several positions with Cook County over
the years. R. 1, Compl. ¶¶ 9-13. In 1996, he started out as an Operating Engineer at
the Department of Facilities Management. Id. ¶ 9. He left County employment in
1998, but was rehired in 2008 as a Coordinator in the Office of the Chief
Administrative Officer. Id. ¶¶ 10-11. He again left County employment in 2010. Id.
¶ 12. In March 2011, McPartlin was again hired by the County, this time as a
Special Assistant assigned to the Bureau of Administration. Id. ¶ 13. He was fired
from that position on January 16, 2015. Id. ¶ 40.
Throughout his employment with the County, McPartlin was active in local
politics. He placed signs in front of his home supporting political organizations and
candidates, and later worked as a campaign manager on local campaigns. Id. ¶¶ 15,
19, 26. In early April 2011, he was appointed the director of the Elmwood Park
Neighborhood Civic Organization (EPNCO). Id. ¶ 19. This is when McPartlin’s runins with Silvestri began. Id. ¶ 20. Specifically, in May 2011, EPNCO, the Better
Government Association,3 and Fox News started an investigation into possible
corruption and misconduct amongst the Village of Elmwood Park’s leadership;
Silvestri was the Village President. Compl. ¶ 20. In June 2011, the BGA and Fox
(but not EPNCO) published an article asserting that Elmwood Park employees
performed work on Silvestri’s house while being paid from the Village’s coffers. Id.
¶ 21. A few months later, in October 2011, the BGA and Fox (again, not EPNCO)
published an article alleging that Elmwood Park auxiliary police officers performed
political campaign work for Silvestri while being paid by the Village (and as a
condition of employment). Id. ¶ 22. In February 2012, the BGA and Fox alleged that
non-residents with ties to Silvestri had voted in Village elections. Id. ¶ 23.
According to McPartlin, on around July 20, 2012, Silvestri told McPartlin to resign
as director of EPNCO. Id. ¶ 24.
Eventually, in December 2013, McPartlin announced that he was going to
run for office himself, specifically for the Ninth District seat—Silvestri’s seat—on
the Cook County Board of Commissioners. Id. ¶¶ 29, 31. McPartlin alleges that
Silvestri informed him that if he continued his run for Commissioner, McPartlin
would lose his job with the County Id. ¶ 34. Running as the Democrat in the
November 2014 race, McPartlin lost to Silvestri. Id. ¶¶ 31, 38. Two months after the
election loss, on January 16, 2015, McPartlin was fired without any explanation. Id.
Complaint refers only to the acronym “BGA,” but the context makes it clear
that the well-known watchdog group is the pertinent organization.
II. Standard of Review
A complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “A motion under Rule
12(b)(6) challenges the sufficiency of the complaint to state a claim upon which
relief may be granted.” Hallinan v. Fraternal Order of the Police of Chi. Lodge No. 7,
570 F.3d 811, 820 (7th Cir. 2009). In order to survive such a challenge, “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating the
sufficiency of a complaint at this stage, factual allegations are to be assumed true.
Iqbal, 556 U.S. at 678-79.
A. Official Capacity Claims
As an initial matter, the County moves to dismiss any claims against
Preckwinkle and Silvestri in their official capacities. Defs.’ Br. at 4. They argue that
those claims are redundant because official capacity claims are in reality claims
against the municipality itself, and the municipality is already named in the suit.
Id. McPartlin responds that the claims are not redundant, because the County is
not named in all counts of the complaint. R. 26, Pl.’s Resp. Br. at 4.
In suits against public officials, personal-capacity suits and official-capacity
suits are distinct. See Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Proper
application of this principle … requires careful adherence to the distinction between
personal- and official-capacity action suits.”). While “[p]ersonal-capacity suits seek
to impose personal liability upon a government official for actions he takes under
color of state law,” official-capacity suits “represent only another way of pleading an
action against an entity of which an officer is an agent.” Id. (internal quotation
marks and citations omitted). Because suing someone in his or her “official” capacity
is just the same as suing the government, “an official capacity suit is … to be
treated as a suit against the entity.” Id. at 166 (citing Brandon v. Holt, 469 U.S.
464, 471-72 (1985)).
Here, Count One alleges that Cook County is liable for the retaliatory firing
of McPartlin, and that simply duplicates the official-capacity claims in Counts Two
and Three (both of which also allege retaliatory discharge). So the redundant
official-capacity claims in Counts Two and Three are dismissed in favor of Count
One. (As discussed below, the Court proposes to relinquish jurisdiction over the
state-law claims, so there is no need to address the official-capacity claims in
Counts Four, Five, and Six.)
B. Shakman-Exempt Position
More substantively, the County argues that it was authorized to fire
McPartlin for his political activities because his Special Assistant position was
“Shakman-Exempt,” meaning that the job was a policymaking role for which
politics may lawfully be taken into account when deciding to fire McPartlin. Defs.’
Br. at 5. To understand this argument, it would help to take a step back on a few
legal principles. Generally speaking, the First Amendment prohibits governments
from firing an employee based on his or her political beliefs. Branti v. Finkel, 445
U.S. 507, 515 (1980). That said, “a government employee does not enjoy unlimited
freedom of expression with respect to matters that relate to official responsibilities.”
Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 971 (7th Cir. 2001). In
the typical First Amendment retaliatory discharge case, courts apply a balancing
test that was first explained in Pickering v. Board of Educ., 391 U.S. 563, 568
(1968), which balances the interests of the government, the individual, and the
public.4 And in a separate line of cases, the Supreme Court has allowed for political
patronage in certain government hiring, acknowledging that confidentiality and
policymaking concerns inherent in some positions make political considerations
especially relevant to effective performance. Branti, 445 U.S. at 517. A position
satisfies this Branti exception if “the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective performance of the public
office involved.” Id. at 518.
The Seventh Circuit has interpreted these political patronage cases as a
subset of the traditional First Amendment retaliation cases, explaining that “the
Pickering analysis regularly will result in a determination that ‘the government
employer’s need for political allegiance from its policymaking employee outweighs
the employee’s freedom of expression to such a degree that it obviates Pickering
balancing.’” Vargas-Harrison, 272 F.3d at 971 (quoting Bonds v. Milwaukee County,
“we ask … whether the public employee spoke on a matter of public concern”
and then “whether ‘the interests of the [employee], as a citizen, in commenting upon
matters of public concern’ outweigh ‘the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its employees.’” Vargas-Harrison,
272 F.3d at 971 (quoting Pickering, 391 U.S. at 568).
207 F.3d 969, 977 (7th Cir. 2000)). So when a policymaking employee’s speech is at
issue, the First Amendment does not guarantee bullet-proof protection.
This brings us back to the Shakman case. In that landmark case, Cook
County was accused of taking into account politics in hiring (and in other
employment decisions) for jobs that had no policymaking function at all. To settle
the litigation, Cook County entered into a consent decree. See Shakman v.
Democratic Org. of Cook County, 481 F.Supp. 1315, 1321 (N.D. Ill. 1979). The
Shakman Consent Decree generally prohibits political-patronage hiring in Cook
County. In keeping with the policymaking distinction, however, the Consent Decree
also includes a list of positions that are exempt from the ban on patronage hiring.
See Wilson v. Cook Cty., 742 F.3d 775, 778 (7th Cir. 2014) (“[T]he position was a
Shakman exempt position, meaning that it was excluded from the decrees
prohibiting the county from making hiring decisions based on politics.”). The County
argues that it could fire McPartlin for political reasons (including the political
activities mentioned in his complaint), because McPartlin’s position is a
policymaking position that is on the Shakman-exempt list. Defs.’ Br. at 8, Exh. 3 at
McPartlin does not dispute that the Special Assistant job is on the Shakmanexempt list. But he does dispute the County’s interpretation of what it means to
hold a Shakman-exempt job. Pl.’s Resp. Br. at 4. In his view, the exemption from
Shakman is an exemption specifically from the Consent Decree, which was
concerned only with discrimination on the basis of political-party affiliation. Id. at
5. So, the argument goes, the exemption does not provide for “carte blanche”
retaliation against the legitimate exercise of First Amendment rights. Id. at 4.
McPartlin argues that because he and Defendant Preckwinkle shared a party
affiliation (namely, the Democratic Party), the exemption to Shakman is
inapplicable in this case, at least as to Preckwinkle. Id. at 6.
But the exemption to Shakman—and, more importantly, the exemption to
the First Amendment’s bar on considering politics in employment decisionmaking—is not only concerned with preventing one political party from
discriminating against another. The Seventh Circuit expressly said so in Wilbur v.
Mahan, 3 F.3d 214, 218 (7th Cir. 1993). In that case, a deputy sheriff of an Illinois
county criticized his then-boss, the Sheriff, for failing to delegate more authority to
deputies. Id. at 215. The deputy decided to run against the Sheriff in the next
election. Id. In response to that declaration of candidacy, the Sheriff put the deputy
on unpaid leave. Id. A previous Seventh Circuit opinion had established that deputy
sheriffs have so much discretion (more than just regular police officers) that they
qualify as policymakers for purposes of First Amendment retaliation cases. Id. at
217 (citing Upton v. Thompson, 930 F.2d 1209, 1213-16 (7th Cir. 1991)). With that
premise in place, Wilbur affirmed the dismissal of the deputy’s retaliatory-firing
claim—even though the deputy and the Sheriff were both Democrats. Id. at 218.
The Seventh Circuit explained that the underlying rationale for the politicalconsiderations exemption is that a public official cannot effectively implement his or
her policies if there are opposing policymakers within it. Id. at 217. And based on
that rationale, it matters not that the officeholder and the employee are members of
the same political party:
That concern is activated when an employee who occupies such a job
announces that he is going to run against his boss for the boss’s office because
the boss is not administering the office properly. The declaration of candidacy
in these circumstances is a declaration of war. It makes the candidate a
political enemy of his boss whether or not they are members of the same
party—some of the bitterest political fights are intraparty fights … .
Id. at 218 (emphasis added). So an officeholder may consider a policymakingemployee’s political views when making employment decisions, so long as the
expression has some bearing on the employee’s job, and despite the officeholder and
employee sharing a political-party affiliation. Id. at 217-18.
Wilbur’s reasoning applies equally well to McPartlin’s case. After McPartlin
announced his candidacy against his boss, Silvestri was entitled to take into
account McPartlin’s political opposition to Silvestri. And Preckwinkle endorsed
Silvestri in the race, Compl. ¶ 34, so she too could take into account McPartlin’s
political opposition—even though she and McPartlin belonged to the same political
party. Whether it was practicing good government or not, the First Amendment did
not bar either Preckwinkle or McPartlin to remove a policymaking employee like
McPartlin based on his political opposition to them.
Before wrapping up the discussion of the First Amendment claims, it is worth
noting that McPartlin nods at another argument—but does not actually develop it.
Specifically, the response brief mentions that McPartlin was fired (at least in part)
for “whistleblowing activities that were unrelated to the functions of his
position… .” Pl.’s Resp. Br. at 6. But that is all McPartlin says about that argument.
There is no further analysis of the issue, either factually (that is, what allegations
form the premise of this argument) or legally (that is, what does the case law say
about whistleblowing). See Pl.’s Resp. Br. at 4-6. The failure to develop this
argument means he has forfeited it.
Even if McPartlin had developed the argument, it would fail. It is true that
the First Amendment still protects a policymaker from retaliation for speech that
reveals an abuse of office and where politics are not “implicated” in the firing.
Marshall v. Porter Cty. Plan Comm’n, 32 F.3d 1215, 1221 (7th Cir. 1994). In
Marshall, the Executive Secretary of a county’s planning commission accused the
County Building Inspector of, among other things, reaping excessive mileage
reimbursements and failing to conduct inspections. Id. at 1218. The Seventh Circuit
rejected the applicability of the policymaker exception because the criticisms simply
had no relationship to partisan politics. In speaking out, the Executive Secretary
was not aspiring towards [the Inspector’s] position, nor was she attempting to
oust one who belonged to a different party or party faction. The defendants do
not argue that Marshall’s discharge resulted from her political associations;
nor do they argue that she supported the wrong candidate for office.
Id. at 1221. It is not hard to think of other situations where a policymaker’s
criticisms are more aptly characterized as whistleblowing than political opposition
(for one, consider a policymaker accusing the officeholder of sexual harassment).
As noted earlier, however, McPartlin failed to develop this argument’s legal
premise from the case law (by pointing to Marshall, for example) and the factual
premise from the complaint. The closest that he comes on the facts is mentioning, in
the qualified-immunity section of the response brief, that he “assist[ed] in a
corruption investigation.” Pl.’s Resp. Br. at 7. Presumably, McPartlin is referring to
investigative efforts from 2011 and early 2012. As described earlier in this Opinion,
McPartlin was the director of a neighborhood organization in Elmwood Park, known
as EPNCO. Compl. ¶ 19. In May 2011, EPNCO, the Better Government Association,
and Fox News “commenced an investigation” into Elmwood Park’s leadership,
including its Village President—Silvestri. Id. ¶ 20. The BGA and Fox News then
published three articles revealing misconduct tied to Silvestri: in June 2011, an
article asserting that Elmwood Park employees performed work on Silvestri’s house
while being paid from Village funds, id. ¶ 21; in October 2011, an article alleging
that Elmwood Park auxiliary police officers performed political campaign work for
Silvestri while being paid by the Village (and as a condition of employment); id.
¶ 22; and in February 2012, an article alleging that non-residents with ties to
Silvestri had voted in Village elections, id. ¶ 23. In July 2012, Silvestri allegedly
told McPartlin to resign as director of EPNCO, id. ¶ 24, and that was followed by a
similar “request,” indirectly communicated, by Preckwinkle that McPartlin step
down, id. ¶ 25. (It is not alleged whether McPartlin complied.)
The problem with relying on these allegations (again, the response brief did
not explicitly do so) from 2011 and 2012 for the whistleblower argument is that they
do not plausibly state a claim for the retaliatory firing in January 2015. The first
problem is the sheer time gap between the articles and the firing: almost three
years passed between the final article (in February 2012) and the firing (in January
2015). Second, the complaint does not actually allege concrete facts about EPNCO’s
role in the investigation, let alone McPartlin’s role in it. The complaint asserts that
EPNCO, BGA, and Fox News started the investigation, Compl. ¶ 20, but then
conspicuously says nothing about EPNCO or McPartlin’s role in the investigation.
The complaint goes on to say that BGA and Fox News published the three articles,
Id. ¶¶ 21-23, but again says nothing about EPNCO or McPartlin’s role in the
publication. On top of the time and factual gaps between the investigation and the
firing, there is the glaring intervening event that McPartlin ran against Silvestri in
November 2014, a few months before the January 2015 firing. On this complaint, no
plausible claim is alleged connecting the purported whistleblowing to the firing. All
in all, the complaint fails to adequately state a claim for relief under the First
Amendment, so the § 1983 claims must be dismissed.
D. State Law Claims
McPartlin also brings Illinois common law claims for intentional interference
with economic expectancy. Compl. ¶¶ 61-66, 67-72. In response, the County argues
that these claims are time-barred under the Illinois Tort Immunity Act. 745 ILCS
10/8-101(a). Defs.’ Br. at 12. The Act sets a one-year statute of limitations for most
tort suits brought against government employees or a municipality: “no civil action
… may be commenced in any court against a local entity or any of its employees for
any injury unless it is commenced within one year from the date that the injury was
received … .” 745 ILCS 10/8-101(a). Although McPartlin argues that his state law
claims ought to be exempt from the limitations period, the statutory text clearly
applies to all civil actions. Having said that, McPartlin’s claim for equitable relief,
that is, reinstatement to his job, is not covered by the Act. Another section of the
Act, Section 2-101, generally states that “[n]othing in this Act affects the right to
obtain relief other than damages against a local public entity or public employee.”
745 ILCS 10/2-101 (emphasis added). So McPartlin’s claim for reinstatement would
not be barred by the one-year limitations period.
But there is no need to definitively resolve the limitations argument, because
with the federal claims dismissed from the case, the Court relinquishes
supplemental jurisdiction over the state law claims. When all federal claims in a
lawsuit have been dismissed, there is a presumption that federal courts should
relinquish jurisdiction over the remaining state law claims. See RWJ Mgmt. Co. v.
BP Prod. N. Am., 672 F.3d 476, 479 (7th Cir. 2012). Although this “presumption is
rebuttable … ‘it should not be lightly abandoned.’” Id. (quoting Khan v. State Oil
Co., 93 F.3d 1358, 1366 (7th Cir. 1996)). Indeed, this presumption is statutorily
expressed in 28 U.S.C. § 1367(c)(3), which provides for the discretionary
relinquishment of jurisdiction over state claims when the claims providing original
jurisdiction (here, federal question jurisdiction) have been dismissed. The Seventh
Circuit has identified three circumstances that might warrant overcoming the
presumption, but none apply here. They are:
(1) the statute of limitations has run on the pendent claim, precluding the
filing of a separate suit in state court; (2) substantial judicial resources have
already been committed, so that sending the case to another court will cause
a substantial duplication of effort; or (3) when it is absolutely clear how the
pendent claims can be decided.
Sharp Elecs. Corp. v. Metro Life Ins. Co., 578 F.3d 505, 514-15 (7th Cir. 2009)
(internal quotation marks and citations omitted). Here, there is no good reason to
hang onto the state law claims: there will be no statute of limitations bar because of
Illinois’s savings statute, 735 ILCS 5/13-217; substantial resources have not been
devoted to the state law claims; and it is not absolutely clear how Illinois common
law applies to McPartlin’s allegations. The presumption has not been overcome, so
the Court will relinquish supplemental jurisdiction over the state law claims if the
dismissal of the federal claims becomes final.
For the reasons discussed, the County’s motion to dismiss is granted on the
federal law claims (Counts One through Three) and, if the dismissal becomes final,
then supplemental jurisdiction will be relinquished as to the state law claims
(Counts Four through Six). If McPartlin thinks he can fix the deficiencies in the
First Amendment claims, then he may file an amended complaint by March 1, 2018.
See Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010) (generally speaking,
a “plaintiff is entitled to amend the complaint once as a matter of right”). As
discussed in the Opinion, in light of the legal and factual hurdles, the Court is
skeptical that McPartlin will be able to cure the problems in an amended complaint,
but he is entitled to try. The status hearing of February 26, 2018, is reset to March
6, 2018, at 1:15 p.m.
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: February 10, 2018
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